EXHIBIT 10.41
THIS INSTRUMENT PREPARED BY
AND RETURN TO:
Xxxx X. Xxxxxx, Attorney
Baker, Donelson, Bearman & Xxxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx
XXXXXXXXX DEED OF TRUST
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WITH SECURITY AGREEMENT AND ASSIGNMENT OF RENTS AND LEASES
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(WITH FIXTURE FILING)
THIS INDENTURE is made and entered into on this 23rd day of January, 1998,
by and among MEMPHIS INTERNATIONAL MOTORSPORTS CORPORATION, a corporation
organized and existing under the laws of the State of Tennessee whose address is
0000 Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000, party of the first part
(hereinafter called "Grantor"), XXXXX X. XXXXXXXX and XXXXXX X. XXXXX, XX, as
TRUSTEES, both of whom are residents of Shelby County, Tennessee, parties of
the second part (hereinafter called "Trustees"), and FIRST TENNESSEE BANK
NATIONAL ASSOCIATION, a national banking association whose address is 000
Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000, Attention: Metropolitan Division,
party of the third part (hereinafter called "Bank"). This instrument covers
property which is or may become so affixed to real property as to become
fixtures and also constitutes a fixture filing under (S) 47-9-402 of Tennessee
Code Annotated. NOTICE PURSUANT TO (S) 00-00-000 OF TENNESSEE CODE ANNOTATED:
This Deed of Trust secures future advances which are "obligatory advances" as
defined in the aforesaid statute. This Deed of Trust is for "commercial
purposes" as defined in said statute.
FOR AND IN CONSIDERATION OF FIVE DOLLARS ($5.00) cash in hand paid by the
Trustees to the Grantor, and the debt and trusts hereinafter mentioned, the said
Grantor has bargained and sold, and does hereby bargain, sell, convey and
confirm unto the said Trustees the real estate [said real property together with
the Improvements (hereinafter defined) being herein called the "Mortgaged
Property"] situated and being in Shelby County, Tennessee, more particularly
described in EXHIBIT "A," attached hereto and made a part hereof as fully and
particularly as if set out herein verbatim, together with:
(A) All the improvements now on or which may be hereafter placed on said
land during the existence of this lien; and
(B) All the income, rents, issues and profits arising therefrom and for
the use thereof; and
(C) All materials, equipment, furnishings or other property whatsoever
installed or to be installed and used in and about the building or buildings on
said land, including, but not being limited to, all heating, plumbing, lighting,
water-heating, cooking, refrigerating, incinerating, ventilating and air
conditioning equipment, storm doors and windows, shades, rugs, carpeting,
awnings, blinds, drapes, and linoleums, and property of like nature, all of
which property and things are hereby declared to be permanent accessions to the
freehold and part of the realty conveyed herein as security for the Obligations
(hereinafter defined) [the property described in the foregoing clause (A) and
this clause (C) being sometimes herein called the "Improvements"]; and
(D) All leasehold estate, right, title and interest of Grantor in and to
all leases and subleases covering the Mortgaged Property or any portion thereof
now or hereafter existing or entered into, subject to the provisions of Section
2.15 hereof, including, without limitation, all cash or security deposits,
advance rentals, guarantees and deposits of similar nature;
TO HAVE AND TO HOLD, the aforedescribed Mortgaged Property, together with
all the hereditaments and appurtenances thereunto belonging or in anywise
appertaining unto the said Trustees, their successors in trust and assigns, in
fee simple forever; and the said Grantor does hereby covenant with the said
Trustees, their successors in trust and assigns, that Grantor is lawfully seized
in fee of the estate described in EXHIBIT "A," hereto attached, that Grantor has
a good right to sell and convey the same; that the same is unencumbered; and
that the title and quiet possession thereto Grantor will and Grantor's
successors shall warrant and forever defend against the lawful claims of all
persons.
BUT THIS IS A TRUST DEED, and is made for the following uses and purposes,
and none other; that is to say: Borrower (as hereinafter defined) is justly
indebted to Bank or the holder of the indebtedness hereinafter mentioned (said
Bank or such holder being hereinafter sometimes called the "Beneficiary"), in
the principal sum of TWO MILLION FIVE HUNDRED ONE THOUSAND EIGHT HUNDRED TWENTY-
FIVE DOLLARS ($ 2,501,825.00), arising under that certain Reimbursement
Agreement dated as of January 1, 1998 between Gateway International Motorsports
Corporation as Account Party ("Borrower") and the Bank as issuer of its
Irrevocable Letter of Credit No. S983013 (the "Letter of Credit") in the amount
of $2,501,825.00 (the "Stated Amount").
AS FURTHER SECURITY, Grantor hereby pledges, assigns and grants to
Beneficiary a continuing security interest in the property (the "Personal
Property") described in EXHIBIT "B," attached hereto and incorporated herein by
reference [the property described in subparagraph (a) of EXHIBIT "B" being
sometimes herein called the "Tangible Personal Property."]
Grantor desires to secure and make certain the payment of the
indebtednesses incurred by Borrower under the Reimbursement Agreement, and any
and all renewals, modifications and extensions thereof, in whole or in part and
also the payment and performance of the other Obligations, as hereinafter
defined.
NOW, THEREFORE, so long as any part of the Obligations shall remain unpaid
or unperformed, Grantor covenants, agrees, represents and warrants as follows:
ARTICLE I
OBLIGATIONS DEFINED
The following obligations of the Grantor and Borrower are hereinafter
collectively called the "Obligations":
1.1 Reimbursement Agreement. (a) Payment of the indebtedness (and
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interest thereon) incurred by Borrower arising under the Reimbursement Agreement
in connection with the Letter of Credit, and any and all amendments and
modifications thereof, in whole or in part, including all FUTURE ADVANCES
pursuant to the Reimbursement Agreement and the Letter of Credit which
constitute a binding obligation on the part of the Bank to make loans and
advances on behalf of the Borrower in amounts not to exceed the aggregate
principal amount of Two Million Five Hundred One Thousand Eight Hundred Twenty-
Five Dollars ($2,501,825.00); and (b) performance of all other obligations of
Borrower under the Reimbursement Agreement;
1.2 Deed of Trust. Payment of all sums advanced by Beneficiary to or for
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the benefit of Grantor contemplated hereby and performance of all obligations
and covenants herein contained, including, without limitation, any amounts
advanced to protect the trust estate and security interests herein granted and
all attorneys' fees, court costs, and expenses of whatever kind incident thereto
or to the collection of the indebtednesses and obligations hereby secured and/or
enforcement of the liens and security interests herein granted;
1.3 [Reserved]
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1.4 Other Indebtednesses. Payment of all other indebtednesses arising
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under or in connection with this Deed of Trust, the Reimbursement Agreement, the
Letter of Credit or any other instrument or document now or at any time
evidencing, securing or guaranteeing the same including specifically Grantor's
Guaranty Agreement of even date to Bank, given to Bank as a guaranty of
Borrower's obligations under the Reimbursement Agreement (collectively the
"Letter of Credit Documents"), of whatever kind or character, now owing or which
may hereafter become owing by Grantor to Beneficiary, whether such
indebtednesses are evidenced by note, open account, overdraft, endorsement,
surety agreement, guaranty or otherwise; and
1.5 Other Indebtednesses of Grantor and Borrower to Beneficiary. Payment
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and performance of any and all other present and future indebtednesses and
obligations of Grantor to Beneficiary, of every kind, character and description,
howsoever and whensoever arising, whether absolute or contingent, joint or
several, matured or unmatured, direct or indirect, primary or secondary, and
including without limitation, all future advances to the Grantor, all
liabilities of the Grantor under any guaranty executed in favor of the
Beneficiary at any time and all obligations of the Grantor with respect to any
letters of credit issued at any time by Beneficiary for the benefit of Grantor.
ARTICLE II
COVENANTS AND AGREEMENTS AS TO MORTGAGED PROPERTY
Grantor does hereby covenant, warrant and represent to and agree with
Beneficiary as follows:
2.1 Payment and Performance. Grantor shall make or shall use its best
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efforts to cause Borrower to make all payments required under the Reimbursement
Agreement when due and shall punctually and properly perform all of Grantor's
other Obligations, or cause Borrower to do so as applicable.
2.2 Insurance. Grantor shall, at Grantor's sole cost and expense, obtain
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and maintain in some company or companies (having a Best's rating of A:XI or
better) approved by Beneficiary:
(a) Comprehensive public liability insurance covering claims for bodily
injury, death, and property damage, with such minimum limits as Beneficiary
shall, from time to time, specify, but in any event not less than those amounts
customarily maintained by owners of substantially similar property; and
(b) If any of the Mortgaged Property is within an area known as a "special
flood hazard area" as defined in the Flood Disaster Protection Act of 1973, a
Standard Flood Insurance Policy on the Mortgaged Property as required by the Act
or in the Stated Amount, whichever is greater; and
(c) Hazard insurance upon the Improvements and Tangible Personal Property,
insuring against loss by fire and all other hazards covered by extended coverage
and special extended coverage endorsements (including but not limited to loss by
windstorm, hail, flood, earthquake, tornado, explosion, riot, aircraft, smoke,
vandalism, malicious mischief and vehicle damage) as Beneficiary, in its sole
discretion, shall from time to time require, all such insurance to be issued in
such form, with such deductible provision, and for such amount (which shall, in
any event be at least equal to the full replacement value of the improvements)
as shall be satisfactory to Beneficiary; and
(d) Such other insurance as the Beneficiary may, from time to time,
reasonably require by notice in writing to the Grantor.
All required insurance policies shall provide for not less than thirty (30)
days' prior written notice to the Beneficiary of any cancellation, termination,
or material amendment thereto. Grantor will cause all policies of hazard
insurance, business interruption insurance and loss of rents insurance to be
payable to Beneficiary pursuant to a standard mortgagee clause acceptable to
Beneficiary; and Grantor will cause all liability insurance policies to name
Beneficiary as additional insured, if Beneficiary so requires. Grantor will
deposit said policy or policies of insurance with the
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Beneficiary as further security for the Obligations, no responsibility for the
approval or maintenance of any insurance (required to be maintained pursuant
hereto) being imposed upon the Beneficiary or the Trustees. In the event of
damage to or destruction of the Improvements and/or Tangible Personal Property
by fire or other casualty, the net proceeds of the insurance shall be applied
upon the Obligations in such manner as the Beneficiary may elect; or, at the
option of the Beneficiary, such proceeds may be released to Grantor to be used
to restore such property to its former condition. Any insurance policies
furnished the Beneficiary shall become its property in the event the Beneficiary
becomes the owner of the Mortgaged Property by foreclosure or otherwise. The
Beneficiary is hereby authorized and empowered, at its option, to adjust or
compromise any loss under any insurance policies, and to collect and receive the
proceeds from any such policy or policies.
2.3 Taxes and Assessments. Grantor will promptly pay when due all taxes,
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assessments, levies, dues and charges of every type or nature assessed against
the Mortgaged Property or the Personal Property, and any claim, lien or
encumbrance against the Mortgaged Property or the Personal Property which may be
or become prior to the lien of this Deed of Trust.
2.4 Deposit of Taxes and Insurance Premiums. If required by Beneficiary,
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Grantor will deposit with the Beneficiary, monthly, on the first day of each
month, one-twelfth (1/12) of the annual charges for ground or other rent, if
any, insurance premiums and real estate taxes, assessments, water, sewer, and
other charges which might become a lien upon the Mortgaged Property. In
addition, if required by the Beneficiary, the Grantor shall simultaneously
therewith deposit with the Beneficiary a sum of money which, together with the
monthly installments aforementioned, will be sufficient to make each of the
payments aforementioned at least thirty (30) days prior to the date such
payments are due. Should said charges not be ascertainable at the time any
deposit is required to be made with the Beneficiary, the deposit shall be made
on the basis of an estimate made by the Beneficiary in its sole discretion; and
when the charges are fixed for the then current year, the Grantor shall deposit
any deficiency with the Beneficiary. All funds so deposited with the
Beneficiary shall be held by it, but not in escrow and, except to the extent
required by applicable law, without interest, and, provided that no Event of
Default (hereinafter defined) shall have occurred, shall be applied in payment
of the charges aforementioned when and as payable, to the extent the Beneficiary
shall have funds on hand. Upon the occurrence of any Event of Default, the
funds deposited with the Beneficiary, as aforementioned, may be applied in
payment of the charges for which such funds shall have been deposited, or to the
payment of the Obligations, or upon any other charges affecting the security of
the Beneficiary, as the Beneficiary sees fit, but no such application shall be
deemed to have been made by operation of law or otherwise until actually made by
the Beneficiary as herein provided, nor shall any application be deemed to
affect any right or remedy of the Beneficiary hereunder or under any statute or
rule of law. If deposits are being made with the Beneficiary, the Grantor shall
furnish the Beneficiary with bills for the charges for which such deposits are
required to be made hereunder and/or any other documents necessary for the
payment of same, not later than fifteen (15) days prior to the date upon which
the charges first become payable. The enforceability of the covenants relating
to taxes, assessments, and insurance premiums herein otherwise provided for
shall not be affected except insofar as those obligations have been met by
compliance with this paragraph. Beneficiary may, from time to time, at its
option, waive, and after any such waiver reinstate, any or all of the provisions
hereof requiring such deposits, by notice to Grantor in writing. While any such
waiver is in effect, Grantor shall pay the taxes, assessments, insurance
premiums, and other charges as herein provided.
2.5 Taxes on Reimbursement Agreement or Deed of Trust. If at any time any
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law shall be enacted imposing or authorizing the imposition of any tax upon the
Reimbursement Agreement, any of the Obligations, or this Deed of Trust, or upon
any rights, titles, liens, or security interests created hereby, or any part
thereof, Grantor shall immediately pay all such taxes; provided that, if it is
unlawful for Grantor to pay such taxes, Beneficiary may pay such taxes and
Grantor shall reimburse Beneficiary for such payment in full within ten (10)
days after notice; provided, further, that if it shall be unlawful for Grantor
either to pay such taxes or to reimburse Beneficiary therefor, or if such
payment or reimbursement would be usurious, Grantor shall not be required to
make such payment or reimbursement, but at Beneficiary's option, the Obligations
shall thereupon be immediately due and payable.
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2.6 Eminent Domain. Grantor hereby transfers, sets over, and assigns to
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Beneficiary all judgments, awards of damages and settlements hereafter made as a
result or in lieu of any taking of the Mortgaged Property or any part thereof
under the power of eminent domain, or for any damage (whether caused by such
taking or otherwise) to the Mortgaged Property or any part thereof, or to any
rights appurtenant thereto, including any award for change of grade of streets.
Beneficiary is hereby authorized, but not required, in behalf and in the name of
Grantor, to execute and deliver valid acquittances for, and to appeal from, any
such judgments or awards. Beneficiary may apply all such sums or any part
thereof so received, after the payment of all of its expenses, including costs
and reasonable attorney's fees, on the Obligations secured hereby, whether due
or not, in such manner as it elects or, at its option, the entire amount or any
part thereof so received may be released to the Grantor or other party lawfully
entitled thereto.
2.7 Repair, Waste, Alterations, etc. Grantor shall keep every part of the
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Mortgaged Property and the Personal Property in good operating order, repair and
condition and shall not commit or permit any removal or waste thereof, normal
wear and tear excepted. Grantor shall not remove or demolish or alter the
design or structural character of any Improvements now or hereafter erected upon
the Mortgaged Property without the prior written consent of Beneficiary unless
such removal, demolition or alteration is contemplated and permitted by the
Letter of Credit Documents. Grantor shall make promptly all necessary repairs,
renewals and replacements to the Mortgaged Property and the Personal Property.
2.8 Advances by Beneficiary to Protect Collateral. If the Grantor shall
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default in paying taxes, maintaining insurance or making repairs, the
Beneficiary may, at its discretion, advance and pay such sums as may be proper
to satisfy taxes, maintain insurance and make repairs, and protect and preserve
the Mortgaged Property and Personal Property, and such amounts so paid shall be
treated as part of the expense of administering this trust, shall be repaid by
Grantor on demand with interest at the Default Rate (hereinafter defined), and
shall be secured by the lien hereof. However, the making of any such payment by
Beneficiary shall not be construed as a waiver of any default of Grantor.
2.9 No Mechanics' Liens. Grantor shall discharge all claims for labor
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performed and material furnished to the Mortgaged Property, and shall not suffer
any lien of mechanics or materialmen to be filed against any part of the
Mortgaged Property. Beneficiary has not consented and will not consent to any
contract or to any work or to the furnishing of any materials which might be
deemed to create a lien or liens superior to the lien of this instrument, either
under (S) 00-00-000 of Tennessee Code Annotated, or otherwise.
2.10 Protection and Priority of Lien. Grantor shall not do anything or
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suffer or permit anything to be done whereby the lien and security interest of
this Deed of Trust could be impaired. Grantor shall pay such reasonable
expenses and fees as may be necessary in the protection of the Mortgaged
Property and Personal Property and the maintenance and execution of liens and
security interests herein granted. Any agreement hereafter made by Grantor and
Beneficiary pursuant to or regarding this Deed of Trust shall be superior to the
rights of the holder of any intervening lien or encumbrance.
2.11 Compliance with Laws. Grantor, the Mortgaged Property, the Personal
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Property, and the use thereof by Grantor shall comply with all laws, rules,
ordinances, regulations, covenants, conditions, restrictions, orders and decrees
of any governmental authority or court applicable to Grantor or the Mortgaged
Property and its use; Grantor will not suffer or permit any violation thereof;
and Grantor shall pay all fees or charges of any kind in connection therewith.
2.12 Further Assurances. Grantor, upon the request of Beneficiary, shall
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execute, acknowledge, deliver, and record such further instruments and do such
further acts as may be necessary, desirable or proper to carry out the purposes
of this instrument and the other Letter of Credit Documents and to subject to
the liens and security interests created thereby any property intended by the
terms thereof to be covered thereby, including specifically but without
limitation any renewals, additions, substitutions, replacements, improvements,
or appurtenances to the Mortgaged Property or the Personal Property.
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2.13 Inspection of Premises. Until the Obligations shall have been fully
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paid and satisfied, Beneficiary and its agents shall have the right at all
reasonable times to inspect the Mortgaged Property, the Personal Property and
the other security for the Obligations, and all applicable books and financial
records relating thereto.
2.14 Applicable to Prior Liens. If this Deed of Trust is or becomes
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subordinate to any other lien, security interest, assignment of leases or rents
or any other encumbrance affecting any of the Mortgaged Property (collectively,
the "Prior Liens") the provisions of this Section shall apply. Grantor shall
not enter into any renewal, extension, modification, increase or refinancing of
any instrument or document (collectively the "Prior Lien Documents") which
creates, evidences or governs any such Prior Lien or the indebtedness secured
thereby without the prior written consent of Beneficiary. Grantor shall pay
when due all indebtednesses evidenced and secured by the Prior Lien Documents
and shall timely perform all other obligations of the Grantor under the Prior
Lien Documents. Beneficiary may, but shall not be obligated to, pay any such
indebtedness or perform any such obligations for the account of Grantor and any
sum so expended plus interest shall be secured hereby. Grantor shall pay to
Beneficiary on demand all amounts so expended by Beneficiary with interest on
such amounts at the Default Rate (hereinafter defined). Grantor shall send to
Beneficiary a copy of each notice of default or notice of acceleration or other
notice received by Grantor from the holder of any of the Prior Lien Documents
within three (3) business days after receipt thereof by Grantor.
Notwithstanding the foregoing, Beneficiary does not consent to any Prior Lien
unless otherwise expressly permitted in this Deed of Trust.
2.15 Due on Sale or Encumbrance. Grantor hereby acknowledges to
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Beneficiary that (a) the identity and expertise of Grantor were and continue to
be material circumstances upon which the Beneficiary has relied in connection
with, and which constitute valuable consideration to Beneficiary for, issuing
the Letter of Credit and entering into the Reimbursement Agreement, (b) any
change in such identity or expertise could materially impair or jeopardize the
security granted to Beneficiary by this Deed of Trust, for the payment of the
Obligations. Grantor therefore covenants and agrees with Beneficiary that the
entire Obligations secured by this Deed of Trust shall, at the absolute option
of Beneficiary, be and become immediately due and payable should the Grantor,
without the prior written consent of Beneficiary (which consent may be given or
withheld in the sole and absolute discretion of Beneficiary), sell, assign,
transfer, convey, lease with option to purchase, enter into a contract for sale,
grant an option to purchase, or further encumber any or all of Grantor's
interest in the Mortgaged Property or the Personal Property, or any portion
thereof, or permit the same to be sold, assigned, transferred, conveyed,
contracted for or further encumbered. Any change of ownership in the stock
ownership of Grantor, without the prior written consent of Beneficiary, shall
also be deemed to constitute a breach of this covenant.
2.16 Hazardous Wastes. (a) As used below, and in any of the other Letter
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of Credit Documents, "Hazardous Substances" shall mean and include all hazardous
and toxic substances, wastes or materials, any pollutants or contaminants
(including, without limitation, asbestos and raw materials which include
hazardous constituents), or any other similar substances, or materials which are
included under any local, state or federal law, rules or regulations pertaining
to environmental regulation, contamination or clean-up, including, without
limitation, "CERCLA," "RCRA," or state lien or state superlien or environmental
clean-up statutes (all such laws, rules and regulations being referred to
collectively as "Environmental Laws"). Grantor warrants, represents and
covenants as follows:
(i) Neither the Mortgaged Property nor any other personal or real
property owned by Grantor is subject to any private or governmental lien or
judicial or administrative notice or action, relating to Hazardous
Substances or environmental problems, impairments or liabilities with
respect to the Mortgaged Property or such other property, or the direct or
indirect violation of any Environmental Laws.
(ii) Except strictly in accordance with all applicable Environmental
Laws (A) no Hazardous Substances are located on or have been stored,
processed or disposed of on or to the best of Grantor's knowledge released
or discharged from (including ground water contamination) the Mortgaged
Property, and no aboveground or underground storage tanks exist on the
Mortgaged Property other than as disclosed in environmental reports
supplied to the Beneficiary; and (B) Grantor shall not allow any Hazardous
Substances
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to be stored, located, discharged, possessed, managed, processed or
otherwise handled on the Mortgaged Property. Grantor shall comply with all
Environmental Laws affecting the Mortgaged Property.
(iii) To the best of the Grantor's knowledge and belief, no property
adjoining the Mortgaged Property is being used, or has ever been used at
any previous time for the disposal, storage, treatment processing or other
handling of Hazardous Substances.
(iv) Grantor shall immediately notify Beneficiary should Grantor
become aware of (1) any Hazardous Substance or other environmental problem
or liability with respect to the Grantor or the Mortgaged Property, or (2)
any lien, action, or notice of the nature described in subparagraph (i)
above. Grantor shall, at Grantor's own cost and expense, take all actions
as shall be necessary or advisable for the clean-up of the Mortgaged
Property, including all removal, containment and remedial actions in
accordance with all applicable Environmental Laws (and in all events in a
manner satisfactory to Beneficiary), and shall further pay or cause to be
paid at no expense to Beneficiary all clean-up, administrative and
enforcement costs of any court or applicable government agencies which may
be asserted against the Mortgaged Property or the owner thereof. Grantor
shall indemnify Beneficiary against and hold it harmless from all clean-up,
administrative and enforcement costs, damages, liabilities, losses, claims,
expenses (including attorneys' fees and disbursements) which are incurred
by Beneficiary, whether before or after foreclosure of the lien hereof,
with respect to any violation or claim of violation of any Environmental
Law pertaining to the Mortgaged Property. Grantor shall (1) pay such
amounts within ten (10) days after notice from Beneficiary itemizing the
amounts incurred to the date of such notice without requirement of waiting
for the ultimate outcome of any litigation, claim or other proceeding; or
(2) provide Beneficiary, within ten (10) days after demand by Beneficiary,
with a bond, letter of credit or similar financial assurance evidencing to
Beneficiary's satisfaction that the necessary funds are available to pay
the cost of removing, treating and disposing of such Hazardous Substances
and discharging any assessments which may be established on the Mortgaged
Property as a result thereof.
(b) Beneficiary (by its officers, employees and agents) at any time and
from time to time, after the occurrence of an Event of Default, may contract for
the services of persons (the "Site Reviewers") to perform environmental site
assessments ("Site Assessments") on the Mortgaged Property for the purpose of
determining whether there exists on the Mortgaged Property any environmental
condition which could reasonably be expected to result in any liability, cost or
expense to the owner, occupier or operator of such Mortgaged Property arising
under any state, federal or local law, rule or regulation relating to Hazardous
Substances. The Site Assessments may be performed at any time or times, upon
reasonable notice, and under reasonable conditions established by Grantor which
do not impede the performance of the Site Assessments. The Site Reviewers are
hereby authorized to enter upon the Mortgaged Property for such purposes. The
Site Reviewers are further authorized to perform both above and below the ground
testing for environmental damage or the presence of Hazardous Substances on the
Mortgaged Property and such other tests on the Mortgaged Property as may be
necessary to conduct the Site Assessments in the reasonable opinion of the Site
Reviewers. Grantor will supply to the Site Reviewers such historical and
operational information regarding the Mortgaged Property as may be reasonably
requested by the Site Reviewers to facilitate the Site Assessments and will make
available for meetings with the Site Reviewers appropriate personnel having
knowledge of such matters. On request, Beneficiary shall make the results of
such Site Assessments fully available to Grantor, which (prior to an Event of
Default) may at its election participate under reasonable procedures in the
direction of such Site Assessments and the description of tasks of the Site
Reviewers. The reasonable cost of performing such Site Assessments shall be
paid by Grantor upon demand of Beneficiary and any such obligations shall be
Obligations secured by this Deed of Trust.
(c) Beneficiary shall have the right but not the obligation, prior or
subsequent to an Event of Default, without in any way limiting Beneficiary's
other rights and remedies under this Deed of Trust, to enter onto the Mortgaged
Property or to take such other actions as it deems necessary or advisable to
clean up, remove, resolve or minimize the impact of, or otherwise deal with, any
Hazardous Substances on the Mortgaged Property following receipt of any notice
from any person or entity asserting the existence of any Hazardous Substance
pertaining to the Mortgaged Property or any part thereof which, if true, could
result in an order, suit, imposition of a lien on the Mortgaged Property, or
other
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action and/or which, in Beneficiary's sole opinion, could jeopardize
Beneficiary's security under this Deed of Trust. All reasonable costs and
expenses paid or incurred by Beneficiary in the exercise of any such rights
shall be Obligations secured by this Deed of Trust and shall be payable by
Grantor upon demand.
(d) All warranties and representations above shall be deemed to be
continuing and shall remain true and correct in all material respects until all
of the Obligations have been paid in full and any limitations period expires.
Grantor's covenants above shall survive any exercise of any remedy by
Beneficiary under the Letter of Credit Documents, including foreclosure of this
Deed of Trust (or deed in lieu thereof), even if, as a part of such foreclosure
or deed in lieu of foreclosure, the Obligations are satisfied in full and/or
this Deed of Trust shall have been released.
2.17 Relationship of Parties; Adequate Consideration. Grantor and Borrower
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are each first tier, wholly-owned subsidiaries of Grand Prix Association of Long
Beach, Inc. and are part of an integrated business. Grantor has received
adequate consideration from Bank for the grant made in this Deed of Trust by
virtue of the benefit it will receive as a result of the issuance of the Letter
of Credit for the benefit of Borrower.
ARTICLE III
ASSIGNMENT OF RENTS AND LEASES
3.1 Assignment of Rents and Leases. All of the rents, royalties, bonuses,
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issues, profits, revenue, income, deposits, escrow accounts and other benefits
derived from the Mortgaged Property or arising from the use or enjoyment of any
portion thereof or from any existing or future lease or agreement pertaining
thereto and liquidated damages following default under such leases, and all
proceeds payable under any policy of insurance covering loss of rents resulting
from untenantability caused by damage to any part of the Mortgaged Property,
together with any and all rights that Grantor may have against any tenant under
such leases or any subtenants or occupants of any part of the Mortgaged Property
and any award made hereafter to Grantor in any court proceeding involving any of
the tenants or in any bankruptcy, insolvency, or reorganization proceedings in
any state or federal court, and all payments by tenants in lieu of rent (all
hereinafter collectively called the "Rents"), are hereby absolutely and
unconditionally assigned to Beneficiary, to be applied by Beneficiary in payment
of the Obligations. Grantor hereby further assigns to Beneficiary all existing
and future leases, including subleases, any and all extensions, renewals,
modifications, and replacements thereof, and all guaranties of tenants'
performance thereunder, upon any part of the Mortgaged Property (the "Leases").
It is understood and agreed by the parties that this assignment is intended to
be and is an absolute assignment from Grantor to Beneficiary, and not merely the
passing of a security interest; provided, however, that prior to an Event of
Default, Grantor shall have a license, without joinder of Beneficiary, to
enforce the Leases and to collect the Rents as they come due and to retain, use
and enjoy the same. Grantor shall, upon request of Beneficiary, execute
confirmatory assignments of any specific leases affecting any part of the
Mortgaged Property.
3.2 Warranties Concerning Leases and Rents. Grantor represents and
--------------------------------------
warrants:
(a) Grantor has good title to the Leases and Rents hereby assigned
and full authority to assign them without the consent of any other party;
(b) none of the Rents have been or will be assigned, mortgaged or
pledged;
(c) all existing Leases are valid and in full force and effect, and
neither Grantor nor any tenant is in default under any of the Leases;
(d) none of the Rents have been or will be anticipated, waived,
released, discounted, set off or compromised;
- 8 -
(e) except as indicated in the Leases, Grantor has not received any
funds or deposits from any tenant except for and on account of Rents which
have heretofore come due;
(f) the terms of the Leases have not been changed from the terms in
the copies of any of the Leases submitted to Beneficiary for approval.
3.3 Grantor's Covenants of Performance. Grantor covenants to:
----------------------------------
(a) perform all of its obligations under the Leases, take all action
and fulfill all covenants and conditions required to enforce the Leases
against the tenants, and give prompt notice to Beneficiary of any material
failure to do so;
(b) enforce the tenants' obligations under the Leases;
(c) defend, at Grantor's expense, any proceeding pertaining to the
Leases, including, if Beneficiary so requests, any such proceeding to which
Beneficiary is a party; and
(d) neither create nor permit any encumbrance upon or assignment of
Grantor's interest as lessor under the Leases, except this Deed of Trust.
3.4 Prior Approval for Actions Affecting Leases. Grantor shall not,
-------------------------------------------
without the prior written consent of Beneficiary:
(a) receive or collect Rents not yet due under the terms of any of
the Leases;
(b) waive or release any obligation of any tenant under the Leases or
any party liable under the Leases;
(c) cancel, terminate or modify any of the Leases, cause or permit
any cancellation, termination or surrender of any of the Leases, or
commence any proceedings for dispossession of any tenant under any of the
Leases, except upon default by the tenant thereunder; or
(d) change, alter or modify any of the Leases.
3.5 Settlement for Termination. Grantor agrees that no settlement for
--------------------------
damages for termination of any of the Leases under the Federal Bankruptcy Code,
or under any other federal, state, or local statute, shall be made without the
prior written consent of Beneficiary, and any check in payment of such damages
shall be made payable solely to Beneficiary or jointly to Grantor and
Beneficiary. Grantor agrees to endorse any dual payee check for such payment to
the order of Beneficiary. Unless Beneficiary shall hereafter agree otherwise,
any such settlement for damages shall be applied to the Obligations as
Beneficiary may elect.
3.6 No Obligation upon Beneficiary. Beneficiary's acceptance of the
------------------------------
assignment of Leases and Rents provided for herein shall not obligate
Beneficiary to appear in or defend any proceeding relating to any of the Leases
or to the Mortgaged Property, take any action hereunder, expend any money, incur
any expenses, or perform any obligation or liability under the Leases, or assume
any obligation for any deposits delivered to Grantor by any tenant. Beneficiary
shall not be liable for any injury or damage to person or property in or about
the Mortgaged Property.
3.7 Records. Upon request by Beneficiary, Grantor shall deliver to
-------
Beneficiary executed originals of all Leases and copies of all records relating
thereto.
3.8 Merger. There shall be no merger of the leasehold estates created by
------
the Leases with the fee estate of the Mortgaged Property without the prior
written consent of Beneficiary.
- 9 -
3.9 Right to Rely. Grantor hereby authorizes Beneficiary to give notice
-------------
in writing of this assignment at any time to any tenant under any of the Leases,
and from and after the occurrence of an Event of Default hereunder, to direct
any such tenant to make payment of rentals and other amounts due directly to
Beneficiary. Grantor hereby authorizes and directs the tenants under the Leases
to pay Rents to Beneficiary upon written demand by Beneficiary, without further
consent of Grantor, and without verifying whether an Event of Default has
occurred; and the tenants may rely upon any written statement delivered by
Beneficiary to the tenants. Any such payment to Beneficiary shall constitute
full acquittance to the party making such payment for the amount of such
payment.
3.10 Priority of Leases. Except to the extent, if any, otherwise provided
------------------
in a written instrument signed by Beneficiary, the lien of this Deed of Trust is
prior and paramount to all Leases of the Mortgaged Property or any part thereof.
However, Beneficiary may at its option without the consent of any person or
entity, at any time subordinate the lien of this Deed of Trust to any existing
or future Lease of all or any part of the Mortgaged Property by giving written
notice to the tenant under such Lease; and upon sale of the Mortgaged Property
under this Deed of Trust such tenant shall attorn to the owner and each
successive owner of the Mortgaged Property.
ARTICLE IV
SECURITY AGREEMENT
4.1 Security Interest. This Deed of Trust shall be a security agreement
-----------------
between Grantor, as debtor, and Beneficiary, as secured party, respecting the
Personal Property, and Grantor grants to Beneficiary a security interest in such
Personal Property (described in EXHIBIT "B" hereto). In addition to
Beneficiary's other rights hereunder, Beneficiary shall have all rights of
secured parties under the Uniform Commercial Code as adopted in Tennessee
(hereinafter called the "Code"). Grantor shall execute and deliver to
Beneficiary all financing statements that may be required by Beneficiary to
establish and maintain the validity and priority of Beneficiary's security
interest, and Grantor shall bear all costs thereof, including all Code searches
reasonably required by Beneficiary. Upon the occurrence of an Event of Default,
Beneficiary or the Trustees may sell the Personal Property as provided in
Article VI hereof. This security agreement is supplemental to, and not in
derogation of, any separate security agreement which now or hereafter is entered
into between the Grantor and the Beneficiary.
4.2 Representations and Warranties. The Grantor represents and warrants
------------------------------
as follows:
(a) Grantor's principal place of business and chief executive office is
set forth in the first paragraph of this Deed of Trust.
(b) The Grantor owns and, with respect to any Personal Property hereafter
acquired, will own the Personal Property free and clear of any lien, security
interest or other charge or encumbrance except for the security interest created
by this Deed of Trust, and no effective financing statement or other instrument
similar in effect covering all or any part of the Personal Property is on file
in any recording office except such as may have been filed in favor of
Beneficiary relating to this Deed of Trust; Grantor has not and, with respect to
Personal Property hereafter acquired, will not acquire any of the Personal
Property under any conditional sales contract or other agreement or arrangement
where the seller thereof purports to take or reserve a security interest
therein; Grantor has the right to encumber the Personal Property and to grant a
security interest therein to Beneficiary; and Grantor will forever warrant and
defend the security interest of Beneficiary against the lawful claims of all
persons.
4.3 Covenants as to the Personal Property. So long as any of the
-------------------------------------
Obligations shall remain outstanding, unless Beneficiary shall otherwise consent
in writing:
(a) Notice of Changes. Subject to the provisions of Section 2.15 hereof,
-----------------
Grantor shall give advance notice in writing to Beneficiary of any change or
proposed change in Grantor's name, identity, or structure and shall execute and
deliver to Beneficiary, prior to or concurrently with the occurrence of any such
change, all additional financing
- 10 -
statements that Beneficiary may require to establish and maintain the validity
and priority of Beneficiary's security interest with respect to any of the
Personal Property described or referred to herein.
(b) Further Assurances. Grantor will at Grantor's expense, at any time
------------------
and from time to time, promptly execute and deliver all further instruments and
documents and take all further action that Beneficiary deems necessary or
desirable or that Beneficiary may request in order (i) to perfect and protect
the security interest created or purported to be created hereby; (ii) to enable
Beneficiary to exercise and enforce its rights and remedies hereunder in respect
of the Personal Property; or (iii) to otherwise effect the purposes of this Deed
of Trust, including, without limitation: (A) executing and filing such financing
or continuation statements, or amendments thereto, as Beneficiary deems
necessary or desirable or that Beneficiary may request in order to perfect and
preserve the security interest created or purported to be created hereby; (B)
furnishing to Beneficiary from time to time statements and schedules further
identifying and describing the Personal Property and such other reports in
connection with the Personal Property as Beneficiary may reasonably request, all
in reasonable detail.
(c) Location of Property. The Grantor will at all times keep all of the
--------------------
Tangible Personal Property on the Mortgaged Property.
(d) Financing Statements. The Grantor hereby authorizes Beneficiary to
--------------------
file, without execution by the Grantor where permitted by law, one or more
financing or continuation statements, and amendments thereto, relating to the
Personal Property.
(e) Care and Custody. The powers conferred on Beneficiary hereunder are
----------------
solely to protect its interest in the Personal Property and shall not impose any
duty upon it to exercise any such powers. Except for the accounting for moneys
actually received by it hereunder, Beneficiary shall have no duty as to any
Personal Property, the preservation or protection of the same or the taking of
any necessary steps to preserve rights against prior parties or any other rights
pertaining to any Personal Property.
ARTICLE V
EVENTS OF DEFAULT
The occurrence of any one or more of the following events shall constitute
an Event of Default hereunder:
5.1 Failure to Pay Obligations. If Grantor or Borrower shall fail to pay
--------------------------
any part of their respective Obligations, whether principal or interest,
promptly when the same becomes due, or if the Grantor shall fail to pay any sum
necessary to satisfy and discharge taxes and assessments promptly when due, or
to maintain insurance or repairs, or the necessary expense of protecting the
Mortgaged Property or the Personal Property and executing this trust; or
5.2 Default Under Other Liens. If any of the Mortgaged Property or the
-------------------------
Personal Property be levied upon or attached by any legal process, or if there
shall occur any default under or with respect to any Prior Lien, or if the
holder of any lien or security interest on the Mortgaged Property or the
Personal Property institutes foreclosure or other proceedings for the
enforcement of its remedies thereunder; or
5.3 Default on Other Indebtedness. If the Grantor shall default in the
-----------------------------
payment of any other indebtedness, liability or obligation now or hereafter owed
by the Grantor to the Beneficiary; or
5.4 Bankruptcy or Insolvency. If Grantor, or any other owner of the
------------------------
Mortgaged Property, or any guarantor of any of the Obligations, shall
voluntarily become a party to any insolvency, bankruptcy, composition or
reorganization procedure, or make any assignment for the benefit of creditors;
or if any involuntary bankruptcy, insolvency, composition, or other
reorganization proceedings be filed against Grantor, any other owner of the
Mortgaged Property,
- 11 -
or any guarantor of the Obligations, and the same shall not be dismissed within
thirty (30) days after the commencement of any such involuntary proceedings; or
5.5 Abandonment. If Grantor abandons any material portion of the
-----------
Mortgaged Property; or
5.6 Grant of Easement, etc. If Grantor grants any easement or dedication,
-----------------------
files any plat, condominium declaration or restriction, or enters into any
lease, with respect to the Mortgaged Property, unless such action is authorized
by the Letter of Credit Documents or is otherwise consented to by Beneficiary;
or
5.7 False Representation. If any statement, representation or warranty in
--------------------
the Letter of Credit Documents, any financial statement or any other writing
delivered to Beneficiary in connection with the Obligations is false, misleading
or erroneous in any material respect; or
5.8 Grantor's Default Under Leases. If Grantor shall default in any of
------------------------------
Grantor's covenants, obligations and undertakings under any of the Leases and
shall fail to cure said default within the time, if any, permitted by any of
such Leases for cure thereof; or
5.9 Nonperformance of Covenants. If there shall occur any other default
---------------------------
in Grantor's covenants, warranties, agreements, liabilities, obligations and
undertakings as contained in this Deed of Trust or the Letter of Credit
Documents (including, without limitation, any "Event of Default" as defined in
the Reimbursement Agreement), or contained in any other instrument which now or
hereafter secures the Obligations, if such default is not cured within a period
of ten (10) days following the date of written notice thereof by the Bank to
Grantor, or if there is another cure period specifically applicable to such
default, within such applicable cure period.
ARTICLE VI
REMEDIES
If an Event of Default shall occur, Beneficiary may exercise any one or
more of the following remedies:
6.1 Acceleration. Beneficiary may declare the entire Obligations,
------------
principal and interest, immediately due and payable without notice or demand,
the same being hereby expressly waived.
6.2 Enforcement of Assignment of Rents and Leases. Beneficiary may:
---------------------------------------------
(a) terminate the license granted to Grantor to collect the Rents
(regardless of whether Beneficiary or Trustee shall have entered into
possession of the Mortgaged Property), collect and xxx for the Rents in
Beneficiary's own name, give receipts and releases therefor, and after
deducting all expenses of collection, including reasonable attorneys' fees,
apply the net proceeds thereof to any Obligations as Beneficiary may elect;
(b) make, modify, enforce, cancel or accept surrender of any Leases,
evict tenants, adjust Rents, maintain, decorate, refurbish, repair, clean,
and make space ready for renting, and otherwise do anything Beneficiary
reasonably deems advisable in connection with the Mortgaged Property;
(c) apply the Rents so collected to the operation and management of
the Mortgaged Property, including the payment of reasonable management,
brokerage and attorneys' fees, or to the Obligations; and
(d) require Grantor to transfer and deliver possession of all
security deposits and records thereof to Beneficiary.
- 12 -
6.3 Power of Sale. Beneficiary may require the Trustees, and the Trustees
-------------
are hereby authorized and empowered, to enter and take possession of the
Mortgaged Property and to sell all or part of the Mortgaged Property, at public
auction, to the highest bidder for cash, free from equity of redemption, and any
statutory or common law right of redemption, homestead, dower, marital share,
and all other exemptions, after giving notice of the time, place and terms of
such sale and of the Mortgaged Property to be sold, by advertising the sale of
the property for twenty-one (21) days by three (3) weekly notices in some
newspaper published in the county and state where the Mortgaged Property is
situated, which notice may be given before or after entry by the Trustees. The
Trustee shall execute a conveyance to the purchaser in fee simple and deliver
possession to the purchaser, which the Grantor warrants shall be given without
obstruction, hindrance or delay. Trustee may sell all or any portion of the
Mortgaged Property, together or in lots or parcels, and may execute and deliver
to the purchaser or purchasers of such property a conveyance in fee simple.
Trustee making such sale shall receive the proceeds thereof and shall apply the
same as follows: (a) first, the payment of the expenses of making, maintaining
and executing this trust, protection of the Mortgaged Property, including the
expense of any litigation and reasonable attorneys' fees, and reasonable
compensation to the Trustee; (b) second, to any advancements made by the Trustee
or the Beneficiary pursuant hereto, with interest thereon; (c) third, to the
payment of the Obligations herein secured or intended so to be, in such order as
Beneficiary shall elect, and any balance of said Obligations may be the subject
of immediate suit; (d) and, fourth, should there be any surplus, Trustee will
pay it to the Grantor, or to such person as may be legally entitled thereto.
The sale or sales by Trustee of less than the whole of the Mortgaged Property
shall not exhaust the power of sale herein granted, and Trustee is specifically
empowered to make successive sale or sales under such power until the whole of
the Mortgaged Property shall be sold; and if the proceeds of such sale or sales
of less than the whole of the Mortgaged Property shall be less than the
aggregate of the Obligations and the expenses thereof, this Deed of Trust and
the lien, security interest and assignment hereof shall remain in full force and
effect as to the unsold portion of the Mortgaged Property; provided, however,
that Grantor shall never have any right to require the sale or sales of less
than the whole of the Mortgaged Property, but Beneficiary shall have the right
at its sole election, to request Trustee to sell less than the whole of the
Mortgaged Property. Beneficiary may bid and become the purchaser of all or any
part of the Mortgaged Property at any such sale, and the amount of Beneficiary's
successful bid may be credited on the Obligations.
6.4 Sale of Personal Property. At the request of the Beneficiary the
-------------------------
Trustee shall sell the Personal Property concurrently with and in conjunction
with a sale of the Mortgaged Property, in which case the provisions of the
preceding Section shall apply to the Personal Property as well as the Mortgaged
Property. Grantor stipulates and agrees that a sale of the Personal Property in
conjunction with the Mortgaged Property is a commercially reasonable manner of
disposing of the Personal Property. Alternatively, Beneficiary may sell or
otherwise dispose of the Personal Property separately and apart from the
Mortgaged Property in the time and manner provided by the Code. To the extent
that the Code shall require prior notice of sale or other disposition of the
Personal Property, five (5) days written notice shall be deemed to be reasonable
notice. Beneficiary also may (a) require the Grantor to, and the Grantor hereby
agrees that Grantor will at Grantor's expense and upon request of Beneficiary
forthwith, assemble all or part of the Personal Property as directed by
Beneficiary and make it available to Beneficiary at a place to be designated by
Beneficiary which is reasonably convenient to the parties; and (b) sell the
Personal Property or any part thereof in one or more parcels at public or
private sale for cash or credit or for future delivery, and at such price or
prices and upon such other terms as Beneficiary may deem commercially
reasonable. Beneficiary shall not be obligated to make any sale of the Personal
Property regardless of notice of sale having been given. Beneficiary may
adjourn any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned.
6.5 Judicial and Other Relief. Beneficiary or Trustees may proceed by a
-------------------------
suit or suits in equity or at law, whether for the specific performance of any
covenant or agreement herein contained or in aid of the execution of any power
herein granted, or for any foreclosure hereunder or for the sale of the
Mortgaged Property or the Personal Property under the judgment or decree of any
court or courts of competent jurisdiction.
6.6 Entry on Mortgaged Property; Tenancy at Will. (a) Beneficiary may
--------------------------------------------
enter into and upon and take possession of all or any part of the Mortgaged
Property, and may exclude Grantor, and all persons claiming under
- 13 -
Grantor, and its agents or servants, wholly or partly therefrom; and, holding
the same, Beneficiary may use, administer, manage, operate, and control the
Mortgaged Property and may exercise all rights and powers of Grantor in the
name, place and stead of Grantor, or otherwise, as the Beneficiary shall deem
best; and in the exercise of any of the foregoing rights and powers Beneficiary
shall not be liable to Grantor for any loss or damage thereby sustained unless
due solely to the willful misconduct or gross negligence of Beneficiary.
(b) In the event of a trustee's or other foreclosure sale hereunder and if
at the time of such sale Grantor or any other party (other than a tenant under a
Lease as to which the Beneficiary shall have expressly subordinated the lien of
this Deed of Trust as hereinabove set out) occupies the portion of the Mortgaged
Property so sold or any part thereof, such occupant shall immediately become the
tenant of the purchaser at such sale, which tenancy shall be a tenancy from day
to day, terminable at the will of such purchaser, at a reasonable rental per day
based upon the value of the portion of the Mortgaged Property so occupied (but
not less than any rental theretofore paid by such tenant, computed on a daily
basis). An action of forcible detainer shall lie if any such tenant holds over
after a demand in writing for possession of such portion of the Mortgaged
Property.
6.7 Receiver. Beneficiary may make application to a court of competent
--------
jurisdiction, as a matter of strict right and without notice to Grantor or
regard to the adequacy of the Mortgaged Property for the repayment of the
Obligations, for appointment of a receiver of the Mortgaged Property, and
Grantor does hereby irrevocably consent to such appointment. Any such receiver
shall have all necessary and proper powers and duties of receivers in similar
cases, including the full power to rent, maintain and otherwise operate the
Mortgaged Property upon such terms as may be approved by the court.
6.8 Beneficiary's Right to Perform. Upon Grantor's failure to make a
------------------------------
payment or perform an act required by the Letter of Credit Documents, then at
any time thereafter, and without notice to or demand upon Grantor and without
waiving or releasing any other right, remedy or recourse, Beneficiary may (but
shall not be obligated to) make such payment or perform such act for the account
of and at the expense of Grantor, and shall have the right to enter upon the
Mortgaged Property for such purpose and to take all such action as Beneficiary
may deem necessary or appropriate.
6.9 Remedies Cumulative, Concurrent and Nonexclusive. If the Obligations
------------------------------------------------
are now or hereafter further secured by chattel mortgages, deeds of trust,
security agreements, pledges, contracts of guaranty, assignments of leases, or
other security, Beneficiary may, at its option, exhaust its remedies under any
one or more of said instruments and this Deed of Trust, either concurrently or
independently, and in such order as Beneficiary may determine. Beneficiary
shall have all rights, remedies and recourses granted in the Letter of Credit
Documents and available to it at law or equity (including, without limitation,
those granted by the Code), and same (a) shall be cumulative, concurrent, and
nonexclusive, (b) may be pursued separately, successively or concurrently
against Grantor or others obligated for the Obligations, or any part thereof or
against any one or more of them, or against the Mortgaged Property or the
Personal Property, at the sole discretion of Beneficiary, and (c) may be
exercised as often as occasion therefor shall arise, it being agreed by Grantor
that the exercise of or failure to exercise any of same shall in no event be
construed as a waiver or release thereof or of any other right, remedy or
recourse.
ARTICLE VII
TRUSTEES
7.1 Action by Either Trustee. Either of the Trustees named herein shall
------------------------
be clothed with full power to act when action hereunder shall be required, and
to execute any conveyance of the Mortgaged Property. In the event that the
substitution of a Trustee shall become necessary for any reason, the
substitution of one trustee in the place of those or any of those named herein
shall be sufficient. The term "Trustees" shall be construed to mean "Trustee"
whenever the sense requires. The necessity of the Trustees herein named, or any
successor in trust, making oath or giving bond, is expressly waived.
- 14 -
7.2 Employment of Agents. The Trustees, or any one acting in their stead,
--------------------
shall have, in their discretion, authority to employ all proper agents and
attorneys in the execution of this trust and/or in the conducting of any sale
made pursuant to the terms hereof, and to pay for such services rendered out of
the proceeds of the sale of the Mortgaged Property, should any be realized; and
if no sale be made or if the proceeds of sale be insufficient to pay the same,
then Grantor hereby undertakes and agrees to pay the cost of such services
rendered to said Trustees. Trustees may rely on any document believed by them
in good faith to be genuine. All money received by Trustees shall, until used
or applied as herein provided, be held in trust, but need not be segregated
(except to the extent required by law), and Trustees shall not be liable for
interest thereon.
7.3 Indemnification of Trustees. If the Trustees shall be made a party to
---------------------------
or shall intervene in any action or proceeding affecting the Mortgaged Property
or the title thereto, or the interest of the Trustees or Beneficiary under this
Deed of Trust, the Trustees and Beneficiary shall be reimbursed by Grantor,
immediately and without demand, for all reasonable costs, charges and attorney's
fees incurred by them or either of them in any such case, and the same shall be
secured hereby as a further charge and lien upon the Property.
7.4 Successor Trustee. In the event of the death, refusal, or of
-----------------
inability for any cause, on the part of the Trustees named herein, or of any
successor trustee, to act at any time when action under the foregoing powers and
trust may be required, or for any other reason satisfactory to the Beneficiary,
the Beneficiary is authorized, either in its own name or through an attorney or
attorneys in fact appointed for that purpose, by written instrument duly
registered, to name and appoint a successor or successors to execute this trust,
such appointment to be evidenced by writing, duly acknowledged; and when such
writing shall have been registered, the substituted trustee named therein shall
thereupon be vested with all the right and title, and clothed with all the power
of the Trustees named herein and such like power of substitution shall continue
so long as any part of the debt secured hereby remains unpaid.
ARTICLE VII
MISCELLANEOUS
8.1 Waiver of Marshaling and Certain Rights. To the extent that Grantor
---------------------------------------
may lawfully do so, Grantor hereby expressly waives any right pertaining to the
marshalling of assets or marshalling of liens, the equity of redemption, any
statutory or common law right of redemption, homestead, dower, marital share,
and all other exemptions, or other matter which might defeat, reduce or affect
the right of Beneficiary to sell the Mortgaged Property or the Personal Property
for the collection of the Obligations, or the right of Beneficiary to the
payment of the Obligations out of the proceeds of sale of the Mortgaged Property
or the Personal Property, or the proceeds of the Rents and Leases, in preference
to every other person and claimant.
8.2 Waiver of Impairment of Recourse Defenses. Without affecting the
-----------------------------------------
liability of Grantor or any other person (except any person expressly released
in writing) for the payment or performance of any of the Obligations, and
without affecting the rights of Beneficiary with respect to any security not
expressly released in writing, Beneficiary may, at any time, and from time to
time, either before or after the maturity of the Note, and without notice or
consent:
(a) Release any person liable for payment or performance of all or
any part of the Obligations;
(b) Make any agreement extending the time or otherwise altering the
terms of payment or of all or any part of the Obligations (without limit as
to the number of such extensions or the period or periods thereof), or
modifying or waiving any obligation, or subordinating, modifying or
otherwise dealing with the lien or charge hereof;
(c) Exercise or refrain from exercising any right Beneficiary may
have;
(d) Accept additional security of any kind;
- 15 -
(e) Release or otherwise deal with any property, real or personal,
securing the Obligations, including all or any part of the Mortgaged
Property herein described.
Furthermore, the failure of the Beneficiary to perfect any lien granted herein
or in any other Loan Document, to take any action to obtain payment or
performance of the Obligations or to exercise any rights or remedies available
hereunder shall not relieve Grantor or any other person from liability for the
payment or performance of the Obligations nor effect a discharge of the lien,
security interest or assignment herein granted; it being intended that all
"impairment of recourse" and "impairment of collateral" defenses are hereby
waived.
8.3 No Waiver. No waiver by the Trustee or the Beneficiary shall be
---------
construed as a waiver of a subsequent similar default or any other default by
the Grantor. No delay by Beneficiary or by the Trustee in exercising any right
or remedy hereunder, or otherwise afforded by law, shall operate as a waiver
thereof or preclude the exercise thereof during the continuance of any default
hereunder. No failure of Beneficiary to exercise any option herein given to
declare the maturity of the debt hereby secured, no forbearance by Beneficiary
after the exercise of such option, and no withdrawal or abandonment of
foreclosure proceedings by the Beneficiary after the exercise of such option,
shall be taken or construed as a waiver of its right to exercise such option or
to declare such maturity by reason of any past, present, or future default on
the part of the Grantor. Acceptance by Beneficiary of partial payments shall
not constitute a waiver of the default by failure to make full payments.
8.4 Beneficiary's Consent. Except as otherwise expressly provided herein,
---------------------
in any instance hereunder where Beneficiary's approval or consent is required or
the exercise of Beneficiary's judgment is required, the granting or denial of
such approval or consent and the exercise of such judgment shall be within the
sole discretion of Beneficiary, and Beneficiary shall not, for any reason or to
any extent, be required to grant such approval or consent or exercise such
judgment. Beneficiary may consult with counsel, and the written advice or
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
8.5 Appointment of Attorney. Grantor hereby irrevocably appoints
-----------------------
Beneficiary as Grantor's attorney-in-fact, coupled with an interest, with full
authority in the place and stead of the Grantor and in the name of the Grantor
or otherwise, from time to time in the Beneficiary's discretion, to take any
action and to execute any instrument which Beneficiary may deem necessary or
advisable to accomplish the purposes of this Deed of Trust, including, without
limitation (a) to obtain and adjust insurance required to be maintained pursuant
to the provisions of this Deed of Trust; (b) to ask, demand, collect, xxx for,
recover, compound, receive and give acquittance and receipts for moneys due and
to become due in respect of any of the Mortgaged Property, the Leases or the
Personal Property; (c) to receive, endorse, and collect any drafts or other
instruments, documents, and chattel paper in connection with clause (a) or (b)
above; (d) to appear in any action concerning any of the Leases; and (e) to file
any claims or take any action or institute any proceedings which Beneficiary may
deem necessary or desirable for the collection of any of the Rents or the
Personal Property or any amounts otherwise due in connection with the Mortgaged
Property or the Personal Property, or otherwise to enforce the rights of
Beneficiary with respect to the Mortgage Property, the Leases and Rents and the
Personal Property. Grantor hereby ratifies and approves all acts of said
attorney; and so long as the attorney acts in good faith it shall have no
liability to Grantor for any act or omission as such attorney.
8.6 Estoppel Certificate. At the request of the Beneficiary, the Grantor
--------------------
shall furnish promptly a written statement or affidavit, in such form as may be
required by Beneficiary, confirming the unpaid balance of the Obligations, the
date to which interest has been paid and that there are no offsets to or
defenses against any payment or performance of the Obligations or, if there are
any such offsets or defenses, specifying them.
8.7 Expenses of Beneficiary. The Grantor will upon demand pay to the
-----------------------
Beneficiary the amount of any and all costs and expenses, including without
limitation all fees and disbursements of the Beneficiary's counsel and of any
experts and agents, which Beneficiary may incur in connection with (a) the
preparation and recording of this Deed of Trust and the financing statements to
be filed to perfect the security interests granted herein, (b) the
administration of
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this Deed of Trust, (c) the sale of, collection from, or other realization upon
the Mortgaged Property, the Rents and Leases and the Personal Property; (d) the
exercise or enforcement of any of the rights of Beneficiary hereunder; or (e)
the failure of Grantor to perform or observe any of the provisions hereof.
8.8 Indemnification. The Grantor agrees to indemnify and hold the
---------------
Beneficiary harmless from and against any and all claims, losses, and
liabilities arising out of or resulting from this Deed of Trust and the
assignment of rents and leases and the grant of security interests contained
herein (including, without limitation, enforcement of this Deed of Trust),
and/or arising out of or in connection with any other Letter of Credit
Documents, except claims, losses, or liabilities resulting solely and directly
from the Beneficiary's gross negligence or willful misconduct. In the event
that Beneficiary shall assign or transfer its rights hereunder or under the
Reimbursement Agreement or any other Letter of Credit Documents, the rights of
the Beneficiary under this section, under the immediately preceding section and
under any other provisions of the Letter of Credit Documents which require the
Grantor to indemnify or pay expenses of the Beneficiary shall continue in favor
of the Beneficiary originally named herein as well as any successor or assign of
the Beneficiary; and any such provision may be enforced severally by the
original Beneficiary named herein or any such successor or assign of the
Beneficiary or, at their option, by all of such parties acting jointly.
8.9 Default Rate. If Beneficiary shall expend any money chargeable to
------------
Grantor or subject to reimbursement by Grantor under the terms of this Deed of
Trust or any of the other Letter of Credit Documents, Grantor shall repay the
same to Beneficiary immediately at the place where payments, if any, under the
Reimbursement Agreement are payable, together with interest thereon from the
date due (or, if there is no specified due date, from the date of demand
therefor by Beneficiary) until paid at a rate (herein the "Default Rate") equal
to the lesser of (a) twenty percent (20%) per annum, or (b) the maximum
effective contract rate of interest allowed by applicable law.
8.10 Subrogation. To the extent that proceeds of the Obligations are used
-----------
to pay any outstanding lien, charge or encumbrance affecting the Mortgaged
Property (including, without limiting the generality of the foregoing, any Prior
Lien) Beneficiary shall be subrogated to all rights, interests and liens owned
or held by any owner or holder of such outstanding liens, charges and
encumbrances, irrespective of whether such liens, charges or encumbrances are
released of record; provided, however, that the terms and provisions hereof
-----------------
shall govern the rights and remedies of Beneficiary and, to the extent permitted
by law without impairing any of Beneficiary's rights of subrogation, shall
supersede the terms, provisions, rights, and remedies under the lien or liens to
which Beneficiary is subrogated hereunder.
8.11 Payment in Full. If the said Grantor shall pay and perform all of the
---------------
Obligations promptly when due, and shall pay such sums as shall be necessary to
discharge taxes and maintain insurance and perform repairs and the costs, fees
and expenses of making, enforcing and executing this trust, when they shall
severally be due and payable, and shall comply with all of the covenants, terms
and conditions of the Reimbursement Agreement, and this Deed of Trust, and any
other instrument which also now or hereafter secures the Obligations secured
hereby, then this conveyance shall become void, the Trustees shall reconvey by
quitclaim the Mortgaged Property herein described at the expense of the Grantor,
and the Beneficiary shall execute and deliver to Grantor, at Grantor's request,
such documents as may be necessary to evidence the termination of the security
interests and assignments herein granted.
8.12 No Partnership. Nothing contained in this Deed of Trust is intended
--------------
to create any partnership, joint venture or association between Grantor and
Beneficiary, or in any way make Beneficiary a co-principal with Grantor with
reference to the Mortgaged Property, and any inferences to the contrary are
hereby expressly negated.
8.13 Headings, Use of Terms. The article, paragraph and subparagraph
----------------------
headings hereof are inserted for convenience of reference only and shall not
alter, define, or be used in construing the text of such articles, paragraphs or
subparagraphs. Whenever used, the singular number shall include the plural and
the plural the singular, and the use of any gender shall be applicable to all
genders. The term "Grantor" shall include in their individual capacities and
jointly all parties hereinabove named a Grantor. The term "Beneficiary" shall
include any lawful owner, holder, pledgee, or assignee of any of the
Obligations. The duties, covenants, conditions, obligations, and warranties of
Grantor in this
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Deed of Trust shall be joint and several obligations of Grantor and each
Grantor, if more than one, and each Grantor's heirs, personal representatives,
successors and assigns.
8.14 Severability. If any provision of this Deed of Trust is held to be
------------
illegal, invalid, or unenforceable under present or future laws effective while
this Deed of Trust is in effect, the legality, validity and enforceability of
the remaining provisions of this Deed of Trust shall not be affected thereby,
and in lieu of each such illegal, invalid or unenforceable provision, there
shall be added automatically as a part of this Deed of Trust a provision that is
legal, valid and enforceable and as similar in terms to such illegal, invalid or
unenforceable provision as may be possible. If any of the Obligations shall be
unsecured, the unsecured portion of the Obligations shall be completely paid
prior to the payment of the secured portion of such Obligations, and all
payments made on account of the Obligations shall be considered to have been
paid on and applied first to the complete payment of the unsecured portion of
the Obligations.
8.15 Burden and Benefit. This instrument shall be binding on Grantor, and
------------------
Grantor's successors and assigns, and shall inure to the benefit of the
Beneficiary and Trustees and their respective successors and assigns.
8.16 Applicable Law. This Deed of Trust shall be governed by and construed
--------------
in accordance with the laws of the State of Tennessee.
8.17 Financial Statements. At the request of the Beneficiary, Grantor
--------------------
shall furnish to the Beneficiary, (a) within one hundred twenty (120) days
after the end of each fiscal year, financial statements of the Grantor as of the
close of such year, and (b) within ninety (90) days after the close of each
fiscal year, a detailed operating statement with respect to the Mortgaged
Property for the preceding year, reflecting, inter alia, total rents or income
----- ----
received or gross receipts from operations, together with a profit and loss
statement for such year and an occupancy report for the Mortgaged Property. If
required by Beneficiary, such statements shall be prepared by a certified public
accountant acceptable to Beneficiary; and in any event shall be prepared in
accordance with generally accepted accounting principles.
8.18 Venue of Actions. It is expressly understood and agreed that no suit
----------------
or action shall be commenced by the Grantor, or by any successor, personal
representative or assignee of Grantor, with respect to the indebtedness secured
hereby with respect to this Deed of Trust, or any of the other Letter of Credit
Documents, other than in a state court of competent jurisdiction in and for the
County of the State in which the principal place of business of the Bank is
situated, or in the United States District Court for the District in which the
principal place of business of the Bank is situated, and not elsewhere. Nothing
in this paragraph contained shall prohibit Bank from instituting suit in any
court of competent jurisdiction for the enforcement of its rights hereunder, in
the Reimbursement Agreement, or in any other Letter of Credit Document.
8.19 Waiver of Right to Trial By Jury. GRANTOR HEREBY EXPRESSLY WAIVES ANY
--------------------------------
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (a)
ARISING UNDER THIS INSTRUMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (b) IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO THIS INSTRUMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO
OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING; AND FURTHER
AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL
BE DECIDED BY COURT TRIAL WITHOUT A JURY,
- 18 -
AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT TO THE WAIVER OF TRIAL
BY JURY.
IN WITNESS WHEREOF, Grantor has caused this Indenture to be executed by its
duly authorized officers, on this the day and year first above written.
ATTEST: MEMPHIS INTERNATIONAL MOTORSPORTS
CORPORATION
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxxxxxx X. Xxxx
--------------------------------- ------------------------------
Title: Corporate Secretary Title: President
--------------------------- ---------------------------
STATE OF California
---------------
COUNTY OF Los Angeles
--------------
Before me, Xxxxxxxxxxx Xxxxx, a Notary Public in and for the State and
County aforesaid, personally appeared Xxxxx Xxxx and Xxxxx Xxxxxx, with whom I
am personally acquainted (or proved to me on the basis of satisfactory
evidence), and who, upon oath, acknowledged themselves to be the President and
Secretary, respectively, of MEMPHIS INTERNATIONAL MOTORSPORTS CORPORATION, the
within named bargainor, a corporation, and that they as such President and
Secretary, being duly authorized so to do, executed the foregoing instrument for
the purposes therein contained, by the said Xxxxx Xxxx signing the name of the
corporation by himself as such President and by the said Xxxxx Xxxxxx attesting
the same as such Secretary.
WITNESS my hand and seal at office, on this the 22 day of January, 1998.
/s/ Xxxxxxxxxxx Xxxxx
--------------------------------
Notary Public
My Commission Expires:
[NOTARY SEAL]
12-25-99
---------------------
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EXHIBIT "A"
-----------
(Property Description)
[SEE ATTACHED]
A-1
EXHIBIT "B"
-----------
(a) All stoves, ranges, refrigerators, dishwashers, clothes washers,
clothes dryers, disposals, all heating, plumbing, lighting, water heating,
incinerating, ventilating and air conditioning equipment, swimming pool
equipment, shades, awnings, blinds, drapes and draperies, linoleum, rugs
and carpeting, all furniture, furnishings, machinery, equipment, and
fixtures (whether or not so attached to the realty as to become a part
thereof) and all other tangible personal property of every kind and
character now or at any time hereafter located in or on the buildings and
improvements on the property described in EXHIBIT "A" attached hereto,
together with all substitutions, additions, and accessions to any and all
of the foregoing, and exchanges and replacements of any and all of the
foregoing;
(b) All rents, incomes, profits, revenues, royalties, bonuses,
rights, accounts, contract rights, general intangibles, and benefits under
any and all leases or tenancies now existing or hereafter created of the
real property described in EXHIBIT "A," any improvements thereon, or any
part thereof;
(c) All leases and subleases covering the property described in
EXHIBIT "A" or any portion thereof now or hereafter existing or entered
into, and all rights and interests thereunder, including, without
limitation, all cash or security deposits, advance rentals, guarantees and
deposits of similar nature;
(d) All judgments, awards of damages, and settlements hereafter made
as a result of or in lieu of any taking of said real property and
improvements, or any part thereof or interest therein under the power of
eminent domain, or for any damage (whether caused by such taking or
otherwise) to said real property or the improvements thereon or any part
thereof or interest therein, including any award for change of grade of
streets;
(e) All proceeds of hazard or other insurance policies maintained
with respect to any collateral described in subparagraph (a) above or with
respect to the improvements now or hereafter located on said real property
(whether or not First Tennessee Bank National Association is loss payee
thereof);
(f) All proceeds of any and all of the foregoing collateral. Although
proceeds are covered, First Tennessee Bank National Association does not
authorize the sale or other transfer of any of the collateral or the
transfer of any interest in the collateral;
in each case, whether now owned or hereafter acquired by Grantor (Debtor) and
howsoever the interest of Grantor (Debtor) therein may arise or appear (whether
by ownership, lease, security interest, claim, or otherwise).
NAME OF RECORD OWNER OF REAL PROPERTY DESCRIBED IN EXHIBIT "A":
MEMPHIS INTERNATIONAL MOTORSPORTS CORPORATION
B-1
